In Brinker Restaurant Corporation v. Superior Court,1   the California Supreme Court settled the question of the nature of an employer’s duty to provide meal periods to its employees and also the question of the timing of meal periods. The court gave comparable guidance with respect to rest periods, clearly delineating when rest periods must be authorized and permitted. Case law developments in the two-year post-Brinker era make it more important than ever for employers to have written compliant meal and rest period policies in place. In this Commentary, the author explains why this is so important and offers a simple approach to ensure that employers’ meal and rest period policies are legally compliant. First, a refresher on the legal requirements.

Meal and Rest Periods:  The Legal Requirements.

Meal Periods

Under section 512, subdivision (a), of the California Labor Code,2   an employer “may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes,” and “may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes.”3

In Brinker, the defendant contended that an employer’s duty to “provide” meal periods to its employees is met by making meal periods available, and the employer is not additionally obligated to “ensure” that the meal periods are taken as the plaintiffs insisted. The Supreme Court sided with the defendant, holding that an employer’s meal period obligation is “to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”4 On the related question of meal period timing, the Court held that under both the statute and wage order,5 “an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.”6

Rest Periods

An employer’s obligation to provide rest periods derives from the Wage Order, the text of which the Brinker Court found dispositive:  employees must receive 10 minutes of rest time for each four hours of work or “major fraction thereof” – and “major fraction thereof” means “a fraction greater than one-half” – except that a rest period does not need to be authorized for employees “whose total daily work time is less than three and one-half (3½) hours.”7 This means, the Court explained, “[e]mployees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours and so on.”8

On the related question of rest period timing, the Brinker Court again turned to the Wage Order, holding that employers are “subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.9 More specifically, “in the context of an eight- hour shift, ‘[a]s a general matter,’ one rest break should fall on either side of the meal break. [Citation] Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.”10

Why Written Compliant Meal and Rest Period Policies Are So Important

In our April 2012 Employment Law Commentary, “The Post-Brinker Workplace – What Every Employer Should Know,” we advised that employers should have written compliant meal and rest period policies which are disseminated to the employer’s non-exempt employees in a manner calculated to ensure that the employees are fully aware of the policies and their rights under the policies.11 Appellate decisions since Brinker underscore the importance of having written compliant meal and rest period policies. While there are decisions to the contrary, at least three cases decided by California courts of appeal after Brinker have allowed meal and rest period classes to be certified based solely on the absence of a compliant policy.12 To these courts, an employer’s liability arises from having a policy that violates the law, or not having a policy at all, and this supplies the predominating common issue that justifies class certification.

One can take issue with the conclusion reached by these courts, and the author of this Commentary certainly does. But until the question they address is definitively settled, it is more important than ever for employers to have written compliant meal and rest period policies – with the emphasis on compliant. Particularly is this so in light of the California Supreme Court’s just-filed opinion in Duran v. U.S. Bank National Association.13 Duran teaches that an employer has the right to present its affirmative defenses to an employee’s claim.14 If an employer’s defense is that it provides meal and rest periods and the employee chose not to take them, a written compliant meal and rest period policy may be the foundation on which the defense is built.

So What’s an Employer to Do?

The answer to this question should be self-evident. Existing meal and rest period policies should be dusted off and reviewed to ensure they are fully compliant with Brinker. Employers who do not already have a written policy should promptly put one in place, and above all make sure that it is legally compliant and follows Brinker with laser-like precision. A policy stating that an employee is entitled to a 30-minute meal period if the employee works five hours but is silent about a second meal period if he works ten hours, for example, is not a compliant meal period policy – even if shifts are not scheduled to exceed ten hours. A policy that states an employee is entitled to 10 minutes of rest time for each four hours of work and omits “or major fraction thereof” likewise is not a compliant rest period policy. While the employer’s practice may be to provide a second meal period to an employee who works ten hours or to provide a rest period if the employee works three and one-half hours – and cases have been successfully defended on these facts, which is the right outcome – so long as there are cases such as Benton, Faulkinbury and Bradley on the books, a written compliant meal and rest period policy should go a long way toward avoiding certification of a meal or rest period class.

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